Australia/Israel & Jewish Affairs Council

Hezbollah and the Hariri Tribunal

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Update from AIJAC

July 4, 2011
Number 07/11 #02

This Update focuses on the impact of the unsealing of four indictments for Hezbollah members late last week by the UN's Special Tribunal for Lebanon (STL), investigating the 2005 murder for former Lebanese PM Rafiq Hariri.

We lead with an analysis and backgrounder by Prof. William Harris, a distinguished specialist on Syria and Lebanon based in New Zealand. Harris goes through the detailed history of the tribunal process and recent Lebanese politics up until the important turning point reached last week. Harris argues that the "STL is the only serious route to ridding Lebanon of a culture of impunity and paving the way for real pluralist politics free of terror and murder" but also elucidates some reasons for optimism that it can still be effective, despite Hezbollah's opposition and control over the Government. For all the essential background for understanding the tribunal and the implications of these indictments, CLICK HERE.

Next up, Israeli strategic analyst Dr. Jonathan Spyer notes that the indictments represent part of a more generally worrying trend for Hezbollah - a loss of legitimacy in the Sunni world. He says the Hariri investigation, coming on top of the armed seizure of Beirut from the government in 2008, has led to Hezbollah being increasingly perceived in most of the Arab world as simply "a sectarian, Shi’ite creation and ally of Iran" despite efforts to portray itself as a pan-Arab "resistance" movement. He then outlines the complex manoeuvring in the Hezbollah-dominated cabinet as it tries to protect the accused Hezbollah members without furthering this perception. For Spyer's discussion of the contradictions and poor options faced by Hezbollah, CLICK HERE.

Finally, Washington Institute for Near East Policy scholar David Schenker concurs with Spyer that Hezbollah has had a particularly bad week. He also points to the 2008 seizure of Beirut as a turning point in Hezbollah's fortunes, but also to others, including their continuing public praise for Syria's Assad regime even as it murders its own people. Schenker says that Hezbollah will be able to shield its members from the tribunal's justice, but will almost certainly pay a high price, in terms of its reputation in Lebanon and the region, for doing so. For his complete analysis, CLICK HERE.

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Lebanon’s Day in Court

The Controversial Life of the Hariri Tribunal

William Harris

Foreign Affairs
June 30, 2011

Ever since the UN Security Council created it in mid-2007, the Special Tribunal for Lebanon -- the international court charged with prosecuting those responsible for the February 2005 assassination of former Lebanese Prime Minister Rafik Hariri and associated attacks -- has been the object of intense vexation. Thursday's unsealing of the tribunal’s indictments, which named four men (two of whom are suspected Hezbollah members), is the latest turning point in the prolonged history of a controversial body.

Syrian President Bashar al-Assad warned UN Secretary-General Ban Ki-moon months before the STL was established that it would lead to “grave consequences that could not be contained within Lebanon”; Hezbollah has pronounced it a Zionist plot; and in December 2010, Iranian Supreme Leader Ali Khamenei declared its forthcoming findings “null and void.” In January, Hezbollah and its allies, backed by Syria, withdrew from the government of Prime Minister Saad Hariri, son of Rafik, causing its collapse. Hezbollah and Syria sought a new government and prime minister that would be prepared to end Lebanon’s cooperation with the tribunal. Days later, on January 17, the STL prosecutor issued his first indictments, which were kept confidential pending their confirmation by the tribunal’s pretrial judge. The tribunal will probably not proceed to trials until October.

The special tribunal emerged out of UN investigations that were launched in the immediate aftermath of the bombing that killed Hariri. In April 2005, the UN Security Council unanimously authorized a full inquiry into the assassination, setting up the UN International Independent Investigation Commission (UNIIIC). The move marked an unprecedented intervention in a matter normally considered a domestic crime. It stemmed in part from the international community’s fear that if Hariri’s killers were not held accountable, assassinations in Lebanon would continue regularly, indefinitely, and with impunity.

UNIIIC functioned under Chapter VII of the UN Charter, meaning that all UN member states were required to cooperate and that noncompliance could be penalized with the use of force. Initially headed by a Berlin prosecutor, Detlev Mehlis, it produced reports in October and December 2005. In these documents, the body’s team of seven international prosecutors fingered Syrian officials and their Lebanese associates as suspects. Mehlis believed that indictments against at least two people, including one senior Syrian operative, were already almost viable.

Fearing that his country’s judicial system could not cope, Lebanese Prime Minister Fouad Siniora appealed to the United Nations for a tribunal “of international character.” Mehlis and UN Secretary-General Kofi Annan felt that stiffening existing Lebanese courts with an international legal team might expedite justice. The United States, France, and senior Lebanese politicians instead supported Siniora’s proposal for a special tribunal, located outside Lebanon, with Lebanese and international judges. In the meantime, from June to December 2005, there were three more murders and two attempted murders of politicians and journalists who were critical of Syria and its Lebanese allies.

Threatened with death, Mehlis resigned in January 2006 and was replaced by Serge Brammertz, a Belgian prosecutor. As UNIIIC became absorbed in staffing issues and reviewing evidence, the Syrians faced less investigative pressure. Still, in his quarterly reports to the UN Security Council through 2006 and 2007, Brammertz confirmed that the motive for the Hariri killing was political -- a response to the prime minister’s campaign to reduce Syrian influence in Lebanon. He also confirmed that the assassination conspiracy required significant logistics capabilities and involved many people, and he linked other murders and attempted murders to it. Brammertz made little visible progress in the investigation before he handed it over to the Canadian prosecutor Daniel Bellemare in January 2008, but neither did he suggest anything that contradicted his predecessor.

By November 2006, UN and Lebanese legal experts produced a draft protocol for the special tribunal, which the UN transferred to Beirut for Lebanon to pass through its government and parliament. Pro-Syrian ministers, including those from Hezbollah, promptly resigned in order to block its approval, but on November 15 the government approved the agreement with a two-thirds quorum. In reaction, the Syria-aligned speaker of parliament refused to convene a session, which made approving the agreement impossible under the Lebanese constitutional process. In May 2007, the government appealed to the Security Council to confirm unilaterally the protocol and establish the tribunal, which the Security Council did, again deploying Chapter VII powers. It took two years of selections and negotiations, but by March 2009 the tribunal had its international and Lebanese judges, a site of operations in The Hague, and a chief prosecutor – Bellemare. The UNIIIC was disbanded; the investigation was now the work of the tribunal’s prosecutors.

More assassinations accompanied the emergence of the tribunal; within one week of the government’s approval of the tribunal protocol in November 2006, Lebanon’s series of political murders recommenced after a year’s lull. Over the next 14 months, three more parliamentary deputies from the anti-Syrian bloc were killed, along with a capable general who was likely to become army chief and a police officer who was investigating the Hariri case. Between October 2004 and January 2008, 58 people were killed and 335 wounded in 13 incidents, a string of events that marked the most dramatic and sustained political murder campaign since the Cold War.

The final victim of that assassination campaign was Lebanese Internal Security Forces Captain Wissam Eid, who was killed by a car bomb on January 25, 2008. His analysis of cell-phone communications had implicated Hezbollah in the Hariri killing, diverting attention from Syria. It is unclear why the assassination campaign stopped then, but the killing in Damascus of Imad Mughniyeh, Hezbollah’s intelligence commander, only two weeks later may have had something to do with it. Perhaps, some think, he was involved in the Lebanese murders, and his death conveniently got rid of leads up the chain of responsibility.

Through 2009 and 2010, STL investigators interviewed Hezbollah personnel, and in July 2010, Hezbollah’s leader, Hassan Nasrallah, said he expected party members to be charged. Bellemare, STL’s chief prosecutor, also recommended the release of four Lebanese intelligence officials detained since August 2005 on the advice of UNIIIC, citing insufficient evidence for the STL to keep them in custody. The release was a blow to those convinced of the culpability of Lebanese officials associated with Syria, but it also threw the spotlight on Hezbollah. Discreetly backed by Syria, Hezbollah denounced the tribunal, demanding that Lebanon stop cooperating with it and arrest so-called false witnesses, people who had allegedly given misleading testimony to the UN inquiry.

Bellemare’s submission of indictments to the STL’s pretrial judge in January 2011 ended skepticism about the tribunal ever producing anything. Within Lebanon, Saad Hariri and his partners, reduced by defections to a parliamentary minority for the first time since the victory of the March 14 coalition in the 2005 elections, are not in such a weak position as they might appear. New Sunni Prime Minister Najib Mikati, who, on June 13, 2011, finally formed the government Bashar al-Assad required, would face the fury of most of his own community were he to do Shiite Hezbollah’s bidding against the tribunal. And if Lebanon were to decline to cooperate with a tribunal backed by Chapter VII of the UN Charter, it would be in breach of its international obligations and thus invite sanctions. The STL’s Lebanese judges would still be beyond the country’s jurisdiction, and Lebanese funding can always be replaced. And if Lebanon fails to deliver suspects, the tribunal can try them in absentia.

In various respects, the STL represents a new direction for international justice. Unlike other special courts, such as those set up for the former Yugoslavia, Sierra Leone, and Cambodia, it concentrates on a single event: Hariri’s assassination. For the first time, international justice has extended beyond war crimes and crimes against humanity into political murder and terrorism. The fact that the STL was created by the UN Security Council but relies predominantly on Lebanese domestic law also makes it unique. Other mixed courts involving the United Nations and sovereign governments operate under a combination of domestic and international law. The tribunal has improved on its precedents by having special selection panels for judges and the chief prosecutor, which insulate the process from political bargaining in the Security Council. Unlike the International Criminal Court and the Sierra Leone tribunal, the STL can conduct a trial in absentia, which allows the court to function if it is unable to secure those indicted.

Although some of these features create problems, the problems should not be exaggerated. The Security Council’s establishment of a court “of international character” to implement domestic law presents a challenge to state sovereignty. But the Lebanese government requested the move, and the majority of the Lebanese parliament was ready to assent to the court. Another issue is that the STL does not require other states to hand over witnesses and suspects. Compared with the UN inquiry, it is toothless. But the Security Council could swiftly remedy the deficiency with a resolution requiring such cooperation, for example from Syria.

Indeed, the STL will proceed because the Security Council cannot allow murder suspects to destroy an international judicial institution. There are, however, more pertinent measures of success than simply proceeding. First, will the STL be able to convict those who ordered the Hariri assassination and associated crimes, not just those who carried them out? The investigation’s recent interest in Hezbollah personnel probably addresses only middle and lower levels of the conspiracy. If the masterminds of the murder campaign can escape punishment, international justice’s venture into assassination and terrorism will become a farce. Second, can the STL maintain credibility in Lebanon if it becomes less Lebanese? There is reason to be optimistic: half of Lebanon will back the STL in virtually any circumstance, and the skillful deployment of the evidence by the prosecutor over months of judicial sessions has a decent chance of winning over much of the other half.

Success for the STL is the only serious route to ridding Lebanon of a culture of impunity and paving the way for real pluralist politics free of terror and murder. The special tribunal, of course, is not addressing the mass of war crimes and human rights abuses in Lebanon since 1975. But in the real world, it is the only available instrument for beginning to crack the wall.

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Analysis: Hassan Nasrallah exposed

By JONATHAN SPYER
Jerusalem Post, 01/07/2011    

He had support for fighting Israel, not for killing a mainstream Arab politician.

  
Despite its unrivaled ability to impose its will on the country, Hezbollah’s legitimacy in the eyes of non-Shi’ite Arabs in Lebanon and beyond has significantly diminished in recent years. The issuing of indictments against four Hezbollah members for the murder of former Lebanese prime minister Rafik Hariri will only serve to accelerate and compound this process.

Once, Hezbollah presented itself and was seen as an Arab force concerned above all with making war against Israel. The movement’s ability to avoid humiliating defeat by the Jewish state thrilled Arab publics.

The Arab Sunni distrust of Iran and the Shi’ites was briefly trumped.

But this moment did not last. A series of events in the past three years has served to increasingly recast Hezbollah in its original colors – as a sectarian, Shi’ite creation and ally of Iran.

The pivotal moment in this transformation of the movement’s image came when it turned its guns on its domestic Sunni opponents in May 2008. This move was made to protect the boundaries of Hezbollah’s independent military and security infrastructure.

The immediate goal was achieved. But Hezbollah had maintained that its weaponry was for use against Israel alone. Its legitimacy suffered a heavy blow.

This discrepancy between Hezbollah’s matchless ability to impose its will in Lebanon and its declining legitimacy has since increased.

In recent months, the movement’s support for the regime of Bashar Assad in Syria, even as it brutally crushed an uprising by the Sunni majority, has further served to tarnish Hezbollah’s reputation. There is widespread fury and disgust among Lebanon’s Sunnis at the reports of possible Hezbollah involvement, alongside Iranian personnel, in crushing the protests.

Once again, the movement’s Achilles’ heel has been the irresolvable contradiction between its pan-Arab pretensions and its practical loyalties to the narrow, mainly Shi’ite, Iran-led bloc.

This contradiction has now been laid bare in its most blatant form.

 Hezbollah members, whose guns were proclaimed as serving a notional Arab and Islamic “general will” against Israel, now stand accused of the murder of an iconic Sunni Arab politician from the very heart of the Arab mainstream.

 So what is likely to happen? First of all, it is worth remembering that Hezbollah and its allies deliberately brought down the government of Saad Hariri in January in anticipation of precisely this turn of events. Hezbollah leader Hassan Nasrallah dismissed the UN tribunal investigating the Hariri killing as a mere tool of American interests. But Hariri’s government was committed to it.

 So Hezbollah and its allies toppled the government, and after a period of horse-trading, replaced it with a narrower cabinet consisting only of themselves.

 But there are already clear indications of disagreement even within this narrower framework.

 The drafting committee tasked with preparing the new government’s founding political statement found it hard to reach a consensus on the matter of its attitude toward the Hariri tribunal.

 Hezbollah, according to reports, wanted the new government to cut all ties with the tribunal and declare itself in open opposition to what it describes as a “US-Zionist plan.” Newly minted pro-Syrian Prime Minister Najib Mikati evidently baulked at such an unambiguous stance.

 The ministerial statement finally approved on Thursday preserves ambiguity. It declares the new government’s commitment to “the implementation of international resolutions, the Palestinian right of return and knowing the truth behind former PM Rafik Hariri’s assassination,” thus avoiding any concrete response on the matter of the indictments.

 This solves little. Hezbollah has options, but none of them is particularly good.

 At the moment, the accused men – Moustafa Badreddine, Salim Ayyash, Hasan Ainessi and Asad Sabra – remain at liberty. The Lebanese authorities have 30 days to arrest them. If they do not do so, the tribunal will then make the details of the indictment public and order the suspects to appear before the court.

 Hezbollah has the hard power simply to refuse to cooperate with the tribunal, and to prevent by force any attempt to apprehend its members.

 Such an action, however, would take the movement yet further down the slippery slope of loss of any legitimacy or consent to its domination of Lebanon, outside of its narrow Shi’ite core. This would leave it dangerously exposed in a changing Arab world.

 It could, on the other hand, choose to sacrifice some or all of the accused men. But in this regard, it is worth recalling that the accused are not anonymous, outlying members of Hezbollah. Moustafa Badreddine is a brother-in-law of the slain military leader Imad Mughniyeh. And sacrificing movement members would in any case look like surrender and humiliation to a body that Hezbollah has specifically designated as an enemy.

 Whichever path Hezbollah adopts, it is now confronting the contradiction at the heart of its project. The movement has sought to both serve a narrow Shi’ite, pro-Iranian and Syrian interest, and simultaneously to pose as the sword of all the Arabs and Muslims.

 It will have the option in the months ahead of holding its domination of Lebanon by force, in the face of the indictments. But if it does so, the broader project for which it was brought into being will be very severely tarnished. Hezbollah’s hard power will yet more clearly be revealed as in the sole service of the Shi’ites and Iran – and directed against the Sunni regional majority.

 The expected furious denunciations of the tribunal as an American- Zionist plot will not serve to disguise this reality.

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Why Hezbollah Had a Really Bad Week


By David Schenker

New Republic Online,
July 1, 2011

Back in 2006, the Lebanese Shiite militia Hezbollah was riding high. Having fought the Israeli army to a standstill, the organization's leader Hassan Nasrallah declared "divine victory." The war was a public relations coup for the militia, which emerged from the campaign as the most favorable personification of Shiism in the largely Sunni Muslim world. So impressive was the alleged victory that the campaign sparked a widely reported trend of conversion to Shiite Islam in the region. But if 2006 was a divine victory, this week's Special Tribunal on Lebanon (STL) indictments of four Hezbollah officials and affiliates in connection to the February 2005 assassination of former Lebanese premier Rafiq Hariri may prove a divine defeat.

While the first reports of a Hezbollah role in the assassination of Hariri surfaced some two years ago, the formal announcement of the indictments will likely serve as an exclamation point to a longer process of depreciation in the group's reputation that started in 2008, when the organization invaded and occupied Beirut, turning the weapons of "the resistance" on the Lebanese people. That depreciation continued through 2009, when the organization's chief financier was arrested in a Bernie Madoff-like Ponzi scheme. More recently, in an ironic twist, Hezbollah -- which at one time was known as the "Party of the Oppressed" -- has emerged as the strongest regional backer of Syria's murderous Assad regime. Straining credulity, Nasrallah himself has now given two speeches vouching for Assad's pro-reform bona fides.

Now, for an organization that has long described itself as "the Resistance" to Israel, the revelation that it also specializes in killing Sunni Muslims will, at a minimum, be problematic. Although Nasrallah has spent the better part of the past two years trying to discredit the tribunal, few in the largely Sunni Muslim Middle East will question the court's accusation that the militia played a central role in the murder of Hariri, the leader of Lebanon's Sunni community. Indeed, the Arab Spring has contributed to a spike in Sunni-Shiite tensions. Pro-democracy demonstrations in Bahrain, for example, were largely seen by Gulf Arabs as an attempt by the Shiite theocracy in Iran to subvert the Sunni monarchy. In Syria, meanwhile, the rallying cry of the largely Sunni Muslim opposition to the Alawite Assad regime has been "No to Iran, No to Hezbollah!" Given these sentiments -- and despite the residual respect for the accomplishments of the organization -- the indictment will likely be seen through a largely sectarian prism.

Moreover, the accusations are bound to foment discontent within Nasrallah's organization, and potentially result in some diminished support for the militia in Lebanon. While they will not come as a shock to anyone, of course, they will reopen old wounds, enraging Lebanon's Sunni Muslims and, perhaps, disillusioning a few of Hezbollah's Christian allies. At the same time, some Shiites -- Hezbollahis and the organization's constituents -- will likely view the indictments as a liability and may seek to provoke another conflict with Israel, a la 2006, to distract attention from the tribunal. But regardless of Nasrallah's bravado, Shiites in south Lebanon do not crave another costly war with Israel or a return to civil war at home.

To be sure, notwithstanding the indictment of four of its lieutenants, Hezbollah will remain firmly in control of Lebanon, both politically and militarily. But the organization's stature in the wider Muslim world will be irrevocably diminished, and the change in status of this once seemingly holy Shiite organization will likewise further undermine the position of Iran and Syria in the region. It could also undermine Hezbollah in the eyes of Europe, where the militia has long benefitted from the Continent's inexplicably tolerant view of the group's "political" wing. Indeed, given the European Union's expressed disgust with the ongoing atrocities perpetrated by the Assad regime and its growing frustration with the clerical regime in Tehran, the EU might be inclined to shift its views and finally lump Hezbollah in with these irredeemable regimes.

Until then, despite United Nations Resolutions calling for Lebanon to render the indicted individuals, it is all but certain Hezbollah won't cooperate with the Special Tribunal. But while the trigger men themselves may slip the noose and be tried by the STL in absentia, the Shiite militia and its sponsors that ordered the Hariri hit will pay a steep price. Indeed, there may or may not ultimately be a conviction in The Hague, but in the Middle East court of public opinion, the verdict on Hezbollah will be guilty.

David Schenker is the Aufzien fellow and director of the Program on Arab Politics at The Washington Institute.

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